Terms and Conditions // Lifetime Warranty
Nikola Labs Inc. (hereinafter "Nikola") warrants to the original purchaser that the complete transponder and sensor solution, per installed unit, will be free from defects in materials and workmanship for the life of the installation, including all integrated components, including the housing, boards, chips, ports, etc al. Nikola warrants other equipment, especially, but not including, Nikola provided stability structures, power wiring, harnessing provided by Nikola, etc al., for the life of the installation at client facility and per unit installation. This warranty applies to all items that are properly maintained and operated under solution created conditions and in accordance to the Owner's Manual. Nikola does not warrant against damages due to unauthorized product modification or if the product is misapplied from the solution originally created. This warranty only applies to products and/or services for which Nikola receives full payment and/or is ‘current’ through a monthly recurring billing process. Nikola shall not be responsible for any consequential or incidental damages. This Warranty is the sole and exclusive Warranty offered by Nikola. There are no other Warranties of any kind whether express or implied. Nikola hereby expressly disclaims Warranty(s) of Merchantability and Fitness of a particular purpose. After Nikola has been given adequate opportunity to remedy any defects in material or workmanship, Nikola retains the sole option to either replace the goods (including freight paid by Nikola), or refund the purchase price for the goods after the returned goods are found to be defective in workmanship under this warranty. Such an exchange or refund will be the full extent of Nikola liability. Nikola shall not be liable for any other costs, expenses or damages whether direct, indirect, special, incidental, consequential or otherwise. Nikola’s maximum total liability is limited to, and only to, the replacement of the goods sold, if covered under this agreement. Nikola is not, in any way, liable for employee health or other safety concerns. Failure to disclose performance or maintenance issues, thus prohibiting Nikola’s adequate remedy, including, but not limited to, improper or no use of Nikola replacement parts and filters will void this warranty.
Acceptance of Work
In order for client to qualify for any warranty for products of services on a particular project (“the Work”), client must have signed off on the Work upon completion. Failure to sign off on the Work shall not relieve the client from paying for the work.
Standard of Care
The Standard of Care for all services performed or furnished by Nikola under this agreement will be the care and skill ordinarily used by professions similar to Nikola’s practicing under similar circumstances at the same time and in the same locality.
Per Nikola pricing and sales features, certain purchasing options may enable warranty periods longer than the length of time, or in various modified fashions. In this event, Nikola shall provide the additional limited warranty set forth in this paragraph, in accordance with and subject to the terms and conditions contained herein, provided that such Extended Maintenance Contract remains in effect continuously and such Client maintains the equipment in accordance with Nikola’s then current terms and conditions, and provided that all equipment was properly installed, maintained and operated under normal conditions and in accordance to the Owner's Manual.
All documents including, but not limited to, drawings, specifications, data, technical information, computer files, electronic files, records, files, information, materials, papers, models and mock ups prepared by Nikola and its consultants are Instruments of Service for use solely with respect to a specific Project or site. All processes including, but not limited to, techniques, proprietary processes, management and economic policies, financial data, now how, customer lists, computer software, intellectual property, inventions, patents rights and developments or other rights of any nature used by Nikola are Means and Methods of Providing Services. This information has been developed through the expenditure of substantial time, effort and money and is a valuable and necessary asset that Nikola’s wishes to retain in confidence and to withhold from publication and from availability to others. Nikola may expend time and expenses on Program Development to establish and develop Client’s program or project.
Ownership and Nondisclosure
Client agrees that all Instruments of Service and Means and Methods of Providing Service are the sole and exclusive property of Nikola. All copies of Instruments of Service belonging to Nikola in Client’s possession shall be returned to Nikola for destruction, upon termination of this Contract or at any earlier time upon its request. Nikola maintains records any information for its sole benefit and does not guarantee to store for more than one (1) year after completion of the project. Client agrees not to copy, modify or share with anyone else, the Instruments of Service or Means and Methods of Providing Service without permission from Nikola and its president. Client agrees there should be no publication of any Instruments of Service or Means and Methods of Providing Service without the express written permission of Nikola and its president. Client agrees to receive and hold in confidence any information imparted to it or its employees, vendors or suppliers by Nikola which pertains to Nikola’s business activity in any manner, and which is not the subject of general public knowledge, including Means and Methods of Providing Services. Client acknowledges and agrees that to do so would be theft or conversion of Nikola property, trade secrets and/or confidential information. Client shall include the foregoing provisions in all subcontracts in which it enters so that Nikola shall have the same rights herein set forth with respect to each sub contractor. This clause shall survive termination of this contract.
Limitation of Liability
It is expressly agreed that the Clients maximum recovery against Nikola relating to the products or services provided hereunder, whether in contract, tort, or otherwise, is the amount of Nikola’s fee actually paid and that an award of damages not to exceed such fee is Client’s sole and exclusive remedy against Nikola. Under no circumstance shall Nikola be liable for Client’s loss of profit, delay damages, or for any special, incidental, or consequential loss or damage of any nature arising at any time or from any cause whatsoever. Nikola shall have no liability and no warranty of any kind unless it is allowed to fully complete the project and is fully paid for the project. Nikola shall have no liability and no warranty of any kind for any project, which they do not fully supervise, participate in, and complete. Nikola makes no guarantee of approvals from public agencies, as such approvals may be subjective. Client represents and warrants that it shall at all times comply with all federal, state and local laws, ordinances, regulations and orders that are applicable to the operation of its business, the equipment and this agreement. Without limiting the generality of the foregoing, Client shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses and permits necessary to conduct its business, including without limitation all testing, removal and disposal of waste products.
Client agrees to litigate any dispute regarding this contract or arising from this contract in the Franklin County Circuit Court or the Central Ohio NW Federal District Court as a non jury trial. This paragraph is of essence to the contract. Client agrees not to commence any action or suit (whether Statutory, Common Law, Federal, State, or otherwise) relating to services provided by Nikola more than six (6) months after the date of termination of such service, or the accrual of the cause of action whichever is earlier, and waive any Statute of Limitations to the contrary.
Access to Property and Information
Client grants permission to allow Nikola and its agents and subcontractors continuing access to the Property for the purpose of conducting its work under this agreement. Such access: (a) may be exercised by Nikola or by agents of or consultants to Nikola on Nikola’s Behalf and (b) shall be exercised in a manner which shall not unreasonably interfere with Clients/operators use of Property. After completion of its work, Nikola shall restore any disruptions of the physical elements of the Property caused by its actions. Client represents and warrants that Client has all rights for such access and has conveyed such rights to Nikola. With respect to any materials including but not limited to drawings, sketches or renderings given to Nikola by Client or its agents for use in connection with the Work to be performed by Nikola, Client represents and warrants that Client has all rights in the materials and has conveyed such rights to Nikola as necessary to permit Nikola to use, reproduce, distribute copies, to display, modify, or prepare derivative works, and to seal with Nikola’s name for permitting or other purposes.
Client will assume the defense of any suit brought against Nikola and its subsidiaries, affiliates, shareholders, directors, officers, employees, agents, successors, assigns and distributors arising out of or resulting from any claims, including but not limited to infringement of copyrights, patents, or trade dress, unfair competition, or theft of trade secrets relating to any Client furnished materials. In any such suit, Client will indemnify Nikola against any money damages awarded or costs reasonably incurred with respect to such a claim. This clause shall survive termination of this agreement. The obligations of Client stated above apply only if: 1. Nikola promptly informs Client in writing of any claim within the scope of this paragraph. 2. Client is given control of the defense of such claim and all negotiations relating to its settlement] and 3. Nikola cooperates with Client in all necessary respects in conduct of the suit. Any professional services resulting from such a claim shall be considered additional services and charged at hourly rates.
Client shall not disclose the existence of these terms and conditions and further agrees not to communicate, divulge, or otherwise make available to any third party other than Client’s financial advisors, accountants, or attorneys, any information with respect to these terms and conditions, but not limited to the contents of these terms and conditions or any other information related to Nikola for the purpose of reference, announcement, press release, or any other, without first obtaining prior written consent from an authorized representative of Nikola. In the event the Client breaches this non disclosure covenant, Nikola shall have the right, at its sole discretion, to immediately pursue all of Nikola’s legal remedies against Client. Nikola reserves the right to depict Client’s Projects including logos for promotional purposes. The Client shall not solicit or employ any of Nikola personnel directly, indirectly, as a subcontractor, consultant , employee of another company, or in any way whatsoever during the course of this Contract and for a period of three (3) years after completion of this Contract. If the Client violates this clause of the Contract, Client agrees to pay a minimum of $120,000 in penalties per employee hired from Nikola, or actual damages, whichever is higher. This clause shall survive termination of this Contract and extend to all work performed between the Client, any other or future entity the Client may establish, acquire or be acquired by, and, Nikola.
Changes or Additions
Unless otherwise specified, any changes to any of the drawings, specifications, schedule or scope requested by the client or required for approval will be treated as an extra, and may be subject to additional fees. In some instances, certain drawings as listed in the proposal may not be required or appropriate. In these instances, no deduction in fee shall apply. Client may make oral modifications or change orders, but to be enforced against Nikola, Nikola must have agreed to the modification or change order in writing.
Termination or Suspension
Either party may terminate this Agreement with or without cause upon giving the other party thirty (30) days prior written notice. If the client fails to make payments to Nikola in accordance with this Agreement, such failure shall be considered substantial non-performance and cause for termination or, at Nikola option and upon giving seven (7) days written notification to Client, cause for suspension of performance of services under this Agreement. In the event of termination, Client shall pay Nikola through date of termination for all services rendered as established by current Time and Material Billing Rates for actual time expended, all costs incurred in accordance with current Reimbursable Expense Schedule, and all Program Development Costs. In the event of termination Nikola shall promptly provide a Final Invoice to the Client who shall make payment to Nikola within fourteen (14) days of receipt of same. In the event of suspension of services, Nikola shall have no liability for delay or damage caused to the Client because of such suspension of services. Before resuming services, Nikola shall be paid all sums due prior to suspension including all Program Development Costs and any expenses incurred in the interruption and resumption of Nikola services. Time schedules and Nikola’s fees for the remaining services shall be equitably adjusted.
Any invoice unpaid more than 30 days after the invoice date shall bear interest at the rate of 1.5% per month (18% annually) or the highest legal limit allowed until paid in full. Any payment made more than 10 days after the invoice due date shall be subject to a late payment fee of 5% of the invoice amount. Invoices are due upon mailing. shall not be assignable by Client. 7. If either party ever needs to enforce this agreement, all reasonable attorney fees and costs will be paid to the prevailing party by the other party. The terms and conditions contained herein contain the entire agreement and understanding of the parties hereto and supersede all previous agreements or negotiations related to the subject matter hereof, whether written or oral. In the event there is a conflict between this agreement and a proposal this Agreement shall control unless the parties have in writing expressly acknowledged the conflict in the Nikola proposal and agreed that the applicable proposal shall control. No additional or different terms contained in any purchase order, acceptance, invoice, acknowledgement, bill of lading or any other similar document, click wrap or other terms and conditions provided with any other documents or materials shall be binding on Nikola. No course of dealing or usage of the trade shall be applicable unless expressly incorporated into this agreement.